The exclusionary rule does not require the exclusion of evidence found during a search incident to arrest when the officer reasonably believed that there was an outstanding warrant but that belief was wrong because of a negligent bookkeeping error by another police employee. An officer arrested the defendant based on an outstanding arrest warrant listed in a neighboring county sheriff’s computer database. A search incident to arrest discovered drugs and a gun, which formed the basis for criminal charges. Minutes after the search was completed, it became known that the warrant had been recalled but that a law enforcement official had negligently failed to record the recall in the system. The Court reasoned that the exclusionary rule is not an individual right and that it applies only where it will result in appreciable deterrence. Additionally, the benefits of deterrence must outweigh the social costs of exclusion of the evidence. An important part of the calculation is the culpability of the law enforcement conduct. Thus, the abuses that gave rise to the exclusionary rule featured intentional conduct that was patently unconstitutional. An error that arises from nonrecurring and attenuated negligence is far removed from the core concerns that lead to adoption of the rule. The Court concluded: “To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. . . . [T]he . . . rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The negligence in recordkeeping at issue, the Court held, did not rise to that level. Finally the Court noted that not all recordkeeping errors are immune from the exclusionary rule: “[i]f the police have been shown to be reckless in maintaining a warrant system, or to have knowingly made false entries to lay the groundwork for future false arrests, exclusion would be . . . justified . . . .”

The defendant was charged with possession of a firearm by a person previously convicted of a felony and resisting, delaying, or obstructing an officer. The State dismissed the resisting charge before trial, and the defendant filed a motion to suppress the firearm. The trial judge denied the motion to suppress, the defendant did not object to the introduction of the firearm at trial, and the defendant was convicted. Because the defendant failed to object to the firearm at trial, the Court of Appeals applied plain error review to the denial of his suppression motion.

(1) The evidence showed that the police chief received a call about possible drug activity involving two black males outside a store and radioed the information to patrol officers. A patrol officer saw two men who matched the description walking on the sidewalk, and he parked his marked patrol car. The patrol officer testified that the two men saw him and continued walking. When the officer yelled for the defendant to stop, he looked at the officer and then ran. Another officer eventually located the defendant and arrested him for resisting, delaying, or obstructing an officer.

The Court of Appeals found that the evidence did not support the trial judge’s findings of fact in its denial of the defendant’s suppression motion. Thus, the trial judge found the area had been the scene of several drug investigations and shootings in the previous months, but the police chief testified that for approximately seven years he could recall three arrests for drugs and marijuana and did not testify that they took place in the past several months. The patrol officer testified that he had responded to one shooting in the area but didn’t indicate when the shooting occurred and since then had responded to loitering and loud music issues. The trial judge also found that the defendant walked away “briskly” when he first saw the patrol officer, but the officer testified that the defendant was just walking down the sidewalk. The officer’s later testimony at trial that the defendant kept walking away faster and faster was not before the judge at the suppression hearing and could not be used to support the judge’s findings of fact. The Court found next that the trial judge’s supported findings of fact did not support his conclusion that the officer had reasonable suspicion to stop the defendant initially or probable cause to arrest for resisting. Thus, even assuming the incident took place in a high crime area, the defendant’s presence there and his walking away from the officer did not provide reasonable suspicion to stop. (The Court noted that the patrol officer was unaware of the tip received by the police chief and therefore did not consider the tip in measuring the reasonableness of the stopping officer’s suspicion.) Because the officer did not have reasonable suspicion to stop, the Court found that the defendant was not fleeing from a lawful investigatory stop and the trial judge erred in concluding that there was probable cause to arrest the defendant for resisting.

(2) When the second officer detained the defendant, the defendant did not have a firearm on him. Rather, a K-9 unit recovered the firearm underneath a shed along the defendant’s “flight path.” The Court of Appeals found that the defendant voluntarily abandoned the firearm before he was seized by law enforcement officers. The evidence was therefore not the fruit of an unlawful seizure, and the Fourth Amendment did not bar its admission at trial.

The defendant was stopped by a Charlotte-Mecklenburg police officer for a broken taillight and a passenger seatbelt violation. A second officer arrived shortly after the stop. The stopping officer saw an approximately five-inch closed pocketknife in the center console between the driver and passenger. The officer then asked the defendant to step out of the car so the knife could be secured and to check the defendant for weapons. The defendant exited the car and stated that having the knife was not a crime. The officer agreed, stating he was acting out of officer safety. The defendant stated he was not armed and did not consent to a frisk. When the officer said he was “just going to pat [Defendant] down,” the defendant said, “all right,” and raised his arms. The officer felt a bulge the size of a “large grape” near the defendant’s exterior coat pocket but could not locate the item within the pocket. The officer suspected the item was marijuana and asked the defendant about it. The defendant replied that it was an item he purchased from a store. When asked to remove the item, the defendant produced several items wrapped in plastic, telling the officer, “It’s not illegal, man.” The officer then grabbed the bulge from the outside, lifted the defendant’s coat, and reached inside an interior pocket. The defendant repeatedly asked for a supervisor on scene and protested: “This is not a Terry frisk, man. You’re illegally searching me.” At one point the defendant pushed the officer’s arm away. The officer did not remove his hands from the defendant’s pockets and the defendant eventually fled, falling nearby. As the defendant got up from the fall, the officer observed the defendant “digging in his waistband.”  The defendant was then tased and arrested at gunpoint. A bag was found nearby containing crack and powder cocaine. More crack, marijuana, and cash were found on the defendant. The defendant stated the drugs were for personal use during arrest processing. He was charged with possession with intent to sell or deliver cocaine and possession of cocaine and moved to suppress.

The trial court denied the motion. It found the frisk was not based on reasonable suspicion and was therefore unconstitutional, but the defendant’s act of fleeing sufficiently attenuated that violation from the discovery of evidence. The defendant was convicted of two counts of possession of cocaine at trial and appealed. A divided Court of Appeals reversed.

(1) The State argued that the frisk was justified by the presence of the knife in the center console—since the defendant was armed, he was dangerous—and that the trial court erred in concluding otherwise. The majority disagreed. Two officers were present, the defendant was stopped for equipment violations only, and the stop occurred in the middle of the day in uptown Charlotte near the courthouse. The defendant was generally cooperative, did not attempt to conceal the knife, got out of the car (and away from the knife) upon request, and did not otherwise act suspiciously. These facts were “entirely inapposite” from cases where police had “reason to suspect the defendant possessed and concealed a dangerous weapon on their person, coupled with behavior giving rise to a suspicion the defendant may be dangerous.” Slip op. at 12-13 (emphasis in original) (distinguishing State v. Malachi, ___ N.C. App. ___, 825 S.E.2d 666 (2019)). The trial court therefore did not err in concluding the frisk was unconstitutional.

(2) Under the attenuation doctrine, evidence that would be subject to suppression via the exclusionary rule is nonetheless admissible when the connection between the illegal action of law enforcement and the evidence is “remote or has been interrupted by some intervening circumstance.” See Utah v. Strieff, ___ U.S. ___, 136 S. Ct. 2056 (2016). Courts must examine the closeness in time between the police illegality and the discovery of the evidence, any intervening circumstances, and the “purpose and flagrancy of the official misconduct” when deciding whether the attenuation exception applies. Duncan Slip op. at 16 (citation omitted). As to the first factor, Strieff held that only the passing of “substantial time” between the police misconduct and the discovery of evidence favors attenuation. Because the discovery of evidence here occurred within minutes of the illegal frisk, this factor weighed against attenuation. As to the second factor, the trial court found that the defendant committed the crime of resisting a public officer by fleeing the encounter—officers then had probable cause to arrest for that offense and to search incident to the arrest, which was a sufficient intervening circumstance. The Court of Appeals disagreed, finding that even if the frisk was within the mission of the stop, the officer’s search of the defendant’s pocket for suspected marijuana was not. “Because the traffic stop was unlawful at the point of [the officer’s] unconstitutional search, the defendant had ‘the right to resist [the] unlawful arrest.’” Id. at 21. The court rejected the State’s contention that the defendant could have resisted the search by lesser means, pointing out that the defendant repeatedly asked for a supervisor, repeatedly objected to the search, and tried to remove the officer’s hand from his pocket before fleeing. Thus, the defendant’s flight did not constitute a crime or intervening circumstance weighing in favor of attenuation. The court observed that the final factor, the purpose and flagrancy of law enforcement misconduct, was the most significant factor in the analysis. The trial court found the officers acted in good faith and that this supported application of the attenuation doctrine. The majority again disagreed. “Instead of taking the opportunity—indeed, at Defendant’s invitation—to deescalate the situation, [the officer] proceeded with the flagrantly unconstitutional search.” Id. at 26. These “extraordinary facts” weighed against attenuation and in favor of suppression. The trial court’s order denying the motion to suppress was therefore reversed and a new trial ordered.

Judge Tyson dissented. He would have found that the frisk was justified and that attenuation applied to the extent the search became illegal, as well as other grounds supporting the denial of the motion.

In this case involving drug charges and a charge of driving without an operator’s license, the court declined to address the defendant’s argument that the officer lacked reasonable suspicion to prolong the traffic stop and search the defendant, finding that the search was justified as a search incident to arrest for two offenses for which the officer had probable cause to arrest. An officer was on the lookout for a gold Kia sedan in connection with an earlier incident at the Green Valley Inn. As the officer was monitoring an intersection, he saw a Kia sedan drive through a red light. The officer conducted a traffic stop. The officer approached the vehicle and immediately saw an open beer container in the center console. The officer asked the defendant for his license and registration. The defendant said he did not have a license but handed over a Pennsylvania ID card, with a shaky hand. After noticing the defendant’s red, glassy eyes and detecting an odor of alcohol from the vehicle, the officer asked the defendant to exit the car so that he could search it and have the defendant perform sobriety tests. Before searching the vehicle the officer frisked the defendant. As the officer returned to his police car to check the defendant’s license for outstanding warrants, the defendant spontaneously handed the officer his car keys. Because it was cold, the officer allowed the defendant to sit in the back of the patrol car as he ran the license and warrant checks. The officer determined that the defendant’s license was expired, the vehicle was not registered to the defendant, and the defendant had no outstanding warrants. While sitting in the officer’s vehicle, the defendant voluntarily made a variety of spontaneous statements and asked the officer if he could drive him back to the Green Valley Inn after the traffic stop completed. After doing the license and warrants check, the officer conducted standardized field sobriety tests, which were performed to his satisfaction. He then asked for and got consent to search the defendant, finding powder and crack cocaine in the defendant’s pockets.

          On appeal, the defendant argued that the officer lacked reasonable suspicion to extend the stop after determining that the defendant was not intoxicated. The court however concluded that the officer did not need reasonable suspicion to extend the stop; the court reasoned that because the officer had probable cause to justify arrest, the search was justified as a search incident to arrest. Specifically, the officer’s discovery of the open container and that the defendant was driving without an operator’s license gave the officer probable cause to arrest. An officer may conduct a warrantless search incident to a lawful arrest; a search is incident to an arrest even if conducted prior to the formal arrest.

          For similar reasons, the court rejected the defendant’s argument that his consent to search was invalid because it was given while the stop was unduly prolonged. The court reasoned that because probable cause existed for the arrest and the search was justified as a search incident to an arrest, the defendant’s consent was unnecessary.

          The court went on to hold that even if the search was unlawful, discovery of the contraband on the defendant’s person was inevitable. Here, the officer testified that he would not have allowed the defendant to drive away from the traffic stop because he was not licensed to operate a motor vehicle. The officer testified that he would have searched the defendant before giving him a ride or transporting him to jail because of his practice of searching everyone transported in his patrol car. Also, the defendant repeatedly asked the officer if he would give him a ride back to the Green Valley Inn. Thus, the State established that the cocaine would have been inevitably discovered because the officer would have searched the defendant for weapons or contraband before transporting him to another location or jail.

In an assault on a law enforcement officer inflicting serious bodily injury case, the trial court did not err by denying the defendant’s motion to suppress evidence of his attack on the officer, alleged by the defendant to be proper resistance to an unlawful arrest. The court concluded: “Even if a police officer’s conduct violates a defendant’s Fourth Amendment rights, evidence of an attack on an officer is not fruit of a poisonous tree subject to suppression.” It elaborated:

“The doctrine of the fruit of the poisonous tree is a specific application of the exclusionary rule[,]” providing for the suppression of “all evidence obtained as a result of illegal police conduct.” However, this doctrine does not permit evidence of attacks on police officers to be excluded, even “where those attacks occur while the officers are engaging in conduct that violates a defendant’s Fourth Amendment rights.” Thus, where a defendant argues an initial stop or subsequent arrest violated “his Fourth Amendment rights, the evidence of his crimes against the officers would not be considered excludable ‘fruits’ pursuant to the doctrine.” (citations omitted).

Here, the defendant sought suppression of evidence of an attack on a police officer. The court concluded: “Defendant seeks the suppression of evidence of an attack on a police officer. Since evidence of an attack on a police officer cannot be suppressed as a fruit of the poisonous tree, the evidence Defendant sought to suppress cannot be suppressed as a matter of law.”